Close Guantánamo, Free the Afghans

30.5.13

In the coverage of the ongoing, prison-wide hunger strike at Guantánamo, which is now in its fourth month, there has been widespread recognition that it is unacceptable to indefinitely detain the 86 prisoners (out of 166 in total) who were cleared for release over three years ago by the President’s own inter-agency task force. These men are still held because of Presidential inertia, Congressional obstruction, and the failures of some branches of the US judiciary to uphold justice.

56 of these 86 men are Yemenis, and, in some quarters, it has also been accepted that the ban President Obama imposed on releasing cleared Yemenis from Guantánamo, following a failed airline bomb plot on Christmas Day 2009 that was hatched in Yemen, constitutes collective punishment, and is also fundamentally unacceptable because it means that prisoners whose release was recommended by the President’s own task force continue to be detained not because of what they have done, but because of what they might do in future.

Of the 30 others, however, there has been little or no discussion beyond a recognition that one of them, Shaker Aamer, a British resident with a British wife and four British children, could and should be released immediately.

Around a dozen of these 30 men cannot be repatriated, as they are from countries to which it is not safe to return — China, for example, in the case of the three remaining Uighur prisoners (Muslims from Xinjiang province who face government persecution), and war-torn Syria, which has four cleared prisoners.

Others, however, should also be released as soon as possible, given that all that prevents their release is politically motivated obstruction. Congress imposed restrictions in the National Defense Authorization Acts of 2012 and 2013, preventing the release of prisoners to countries where even a single released prisoner is alleged to have “returned to the battlefield,” and also insisted that, in other cases, the Secretary of Defense would have to certify that any prisoner the government intended to release would not be able to engage in anti-American activities — a requirement that appears to be impossible to fulfil.

To overcome these obstacles, however, a waiver was included in the legislation, which allows the President and the Secretary of Defense to bypass Congress if they regard it as being “in the national security interests of the United States.”

One group of prisoners who might benefit from this waiver are the remaining Afghan prisoners, whose cases I wrote about last year — here and here — when discussions were taking place regarding the possible release of five of the remaining 17 prisoners as part of tentative negotiations between the US and the Taliban.

Those negotiations fell through, but last month David Ignatius revisited the story for an insightful article in the Washington Post entitled, “Keeping Taliban fighters in Guantánamo hurts US interests,” in which he tackled some of the key problems with the “war on terror” that led to the mess at Guantánamo that President Obama has, to date, failed to resolve.

Ignatius began boldly, proclaiming that the “failed effort” to release Afghan prisoners from Guantánamo was an example of how the US government “can work at cross-purposes in dealing with terrorism.” He added, “It shows how an incorrect analysis — that the Taliban and al-Qaeda pose the same threat — can lead to a cascade of bad policy that has undermined US interests.”

The refusal to distinguish between the terrorists of al-Qaeda and the government of Afghanistan at the time of the US-led invasion in October 2001 was a disaster from the start, leading to George W. Bush’s chronically unwise decision to label all the men as “enemy combatants,” and to refuse to grant them any rights at all, either as prisoners or as human beings. More recently, as Ignatius noted, it “complicated the release of five Taliban prisoners from Gitmo during reconciliation talks in 2011; it confounded the Afghan government’s efforts to seek release of eight other Afghans; and it helped fuel a hunger strike described by one prisoner in a recent New York Times op-ed headlined ‘Gitmo Is Killing Me.'”

Ignatius proceeded to explain that the decision by some supporters of Guantánamo to continue to regard all the prisoners at Guantánamo as terrorists, who should be detained indefinitely, is not only wrong, but, in the case of the Afghans, has given the Taliban “a propaganda advantage,” despite CIA assessments that the release of the Afghan prisoners “wouldn’t pose a high security risk.”

Helpfully, Ignatius traces the confusion back to the earliest days of the “war on terror,” through the words of George Tenet, the director of the CIA at the time of the Afghan invasion. He quotes Bob Woodward in his book, Bush at War: “We have to deny al-Qaeda sanctuary, Tenet said. Tell the Taliban we’re finished with them. The Taliban and al-Qaeda were really the same.”

Ignatius continues by explaining that Tenet said he “didn’t view the two as ‘equivalent’ threats,” but adds, “that logic has prevailed ever since, despite skepticism from some CIA analysts as they examined the individual cases.”

As the US began looking at the possibility of releasing Taliban prisoners, after President Obama took office in 2009, his special representative for Afghanistan, Richard Holbrooke, began looking for openings for a political settlement, aware that the Pentagon, backed by Republicans, “opposed any prisoner release that would put Taliban fighters back on the battlefield.”

In April 2009, as Ignatius put it, “Barnett Rubin, an Afghan expert at New York University who would soon join Holbrooke’s team, met with Abdul Salam Zaeef in Kabul.” Zaeef was the Taliban’s former ambassador to Pakistan, who had been held in Guantánamo for three years, and he came up with six names. There was, Ignatius noted, support from former Afghan President Burhanuddin Rabbani, who was in charge of reconciliation efforts for President Karzai.

Rabbani wrote to the US government asking for the release of one of the six, Khairullah Khairkhwa, the former governor of Herat, in early 2011, and this was followed up when Holbrooke’s successor, Marc Grossman, had a secret meeting with a Taliban representative, Mohammed Tayeb al-Agha, which led to a deal involving the proposed release of five Taliban prisoners to Qatar. In return, as Ignatius explained, the Taliban “would condemn international terrorism and release US Army Sgt. Bowe Bergdahl,” a Taliban prisoner since 2009.

Unfortunately, the deal fell through. President Karzai complained that he hadn’t been involved, and when he finally came on board the Taliban had gone off the idea, suspending talks in March last year.

As Ignatius explained, “What made this exercise so frustrating was that the CIA had studied the five Taliban detainees who were slated for release and concluded that this would have no net effect on the military situation, even if they broke their pledges and left Qatar.” Far from being involved with terrorism, the evidence suggested that, although they “had fought with the Taliban, they had no role in supporting al-Qaeda’s plots and had quickly surrendered after the US offensive started.”

After the Taliban withdrew from the talks, President Karzai nevertheless attempted to engage President Obama in further discussions. At the NATO summit in Chicago last May, he asked for the release of eight other Afghans. Their files had also been examined by the CIA, who found that four of them were considered a “low risk” and four were a “medium risk.” As Ignatius put it, however, because of the Congressional requirements covering planned releases from Guantánamo, the Obama administration “made elaborate demands for how the Afghans would be monitored back home,” and Karzai’s government “never bothered to answer.”

Ignatius concluded by noting that the Obama administration “still says it wants a political settlement in Afghanistan, but progress has stalled.” One way to revive it would be for the Afghan prisoners to be released, especially as the Afghan prisoners in Afghanistan — held in the Parwan Detention Facility, formerly known as Bagram — were handed over to Afghan custody in March.

The 17 remaining Afghan prisoners

These are the five prisoners whose release was discussed by the Taliban and the US government in 2011-12:

These are the four prisoners cleared for release by President Obama’s task force:

899 Shawali Khan — had his habeas corpus petition denied in September 2010. See a profile here by Len Goodman, one of his lawyers.
928 Khi Ali Gul
934 Abdul Ghani — was, ludicrously, put forward for a trial by military commission under President Bush in July 2008 (the charges were later dropped). See a profile here by Lt. Col. Barry Wingard, one of his lawyers.
1103 Mohammed Zahir

These are seven others, four of whom had their release requested by President Karzai, although the identities of those men have not been publicly revealed:

560 Haji Wali Mohammed
753 Abdul Zahir
762 Obaidullah — was put forward for a trial by military commission in September 2008, and again under President Obama in January 2010 (although the charges were later dropped), and had his habeas corpus petition denied in September 2010. See here for the report of an investigation in Afghanistan on behalf of his lawyers, which established his innocence.
975 Karim Bostan — had his habeas corpus petition denied in October 2011.
1045 Mohammed Kamin — was put forward for a trial by military commission under President Bush in 2008 (see here and here). The charges were later dropped.
1119 Haji Hamidullah
3148 Haroon Al-Afghani — one of the last five prisoners to arrive at Guantánamo, in 2007.

This is the “high-value detainee”:

10029 Muhammad Rahim — the last prisoner to arrive at Guantánamo, in 2008.

Note: This article was written last Wednesday before President Obama’s speech on national security issues, in which he promised to resume the release of prisoners from Guantánamo. See my coverage here, here and here.

I’d just finished reading the story of a woman who was imprisoned and tortured in Brazil during the years of dictatorship, when I read your article. There´s no excuse for anyone to remain silent and apathetic when the most basic human rights are taken from people.

Yes I agree, Toia. I often say that if everyone who said they cared actually did something about it, the world would be almost immediately transformed into a better place. The silence of the many allows the unspeakable crimes of the few to proceed unchallenged.

I think conditions in Yemen have changed from that time to the point that those – and I think there were almost 100 Yemenis… whom our review determined were in fact not a threat anymore. Ought to be sent back to, ought to be sent back to Yemen. The history is that about a fifth of those whom we released in the past go back to the battlefield. So we are taking a chance that some that we release will try to kill American servicemen or Americans. But I think that is a, in the current situation, is a price worth paying, and that price goes down all the time as time goes by.

It is kind of shocking that Blair fell for the bogus claim that 20 percent of the released captives “go back to the battlefield”. You’d think a DNI would know better? But just think how much he would approve of the idea if he knew the correct figure was more like 2 or 3 percent.

Andy I am going to repeat myself. The decision to torture might men who might be innocent, and who years of torture, brutality, and unjust indefinite detention might turn into enemies — who would still eventually have to be released, was made in 2002.

Since it is inevitable that the USA will eventually have to release these men, they might was well do it now, rather than years from now.

The refusal to distinguish between the terrorists of al-Qaeda and the government of Afghanistan at the time of the US-led invasion in October 2001 was a disaster from the start, leading to George W. Bush’s chronically unwise decision to label all the men as “enemy combatants,” and to refuse to grant them any rights at all, either as prisoners or as human beings.

One of the frustrations I have with those who have argued the USA did not have to honour its obligations under the Geneva Conventions to accord the captives the protections of POW status is that many of those same people whine and complain about efforts to give the captives legal advice and to let them meaningfully pursue habeas corpus petitions.

Those same people have claimed “but captives apprehended in wartime, never get lawyers! Captives never get to pursue habeas!” While true, the reason it is true is that the signatories to the Geneva Conventions agreed that, while they would normally never just seize and hold one another’s citizens, without charging them with a crime, and giving them a fair trial, the one exception would be during war time. They could seize and hold other nations soldiers, under the conditions set out in the GC.

So, when the USA chose to say the Geneva Conventions didn’t apply to their captives, and they didn’t have to give them the protections of POW status, it also meant the USA didn’t get the exemption the Geneva Conventions provided, that freed the USA from providing the captives with access to the civilian legal system.

As they say, accurate knowledge is power. If Obama really wants to close Guantanemo and release all innocent detainees, why no start by ending this “Al-Qaeda is one giant group” myth? I’ll admit that I don’t know every single faction, their leader(s) and all of their goals. However, I do know that we’re not talking some evil global crime syndicate out of a Bond plot.

Obama hasn’t done that up till now because he and his advisors are convinced that not all but most average Americans don’t know, and frankly odds are many don’t care. These people have a short attention span, so keep it really basic. I don’t mean to insult anybody. I’m just saying what I see them doing to others.

In a sense, this “conditioning” (for lack of a better phrase) is now actually hurting Obama instead of helping him. Obama tells the MSM either you play by my rules, or I’ll cut you off. If somebody leaks to you, you’re under arrest. Here, C-SPAN is under the control of the majority party (really, it’s under John Boehner’s control). The Republicans legally can censor Obama or the Democrats anytime they want. I’ve seen them do it twice. Now, would the Speaker of the House have the nerve to censor the President? He’s done it to Democratic House members. So why wouldn’t he do it?

Obama’s terrified of spending the next 3 years fighting more idiotic and racist labels from the Tea Partiers. If he appoints someone to negotiate a closing with Congress, the Republicans can block both the appointment and any action this person could take later. Obama could override this opposition, but only for a short period of time. The last thing he wants is to go down in history as being “weak on terrorism”. One example to many is by closing Guantanemo. Sad but true.

Very well put, arcticredriver. The lack of logic exhibited by these whiners expresses a fundamental lack of intelligence. What they want, it transpires, is for people the government says they should be scared of as Muslim terrorists to have no rights whatsoever. That was the great rallying cry of Bush, Cheney and co after 9/11. Unlimited vengeance without evidence.

I see your argument, Tom, but for me the alarm bells went off when you wrote, “The last thing he wants is to go down in history as being ‘weak on terrorism.'” I don’t agree at all. I would say that the last things he wants while in power is to be seen as “weak on terrorism,” but that, when it comes to his legacy, the last thing he wants is for the history books to describe him as a disastrous failure on Guantanamo, the man who promised to close it but then gave up simply because it proved to be politically difficult.

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Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer. Email Andy Worthington